Allowed

Manju Begum v. the State of Assam and 5 Ors.

Gauhati HC7 Sept 2022WP(C)/5710/2022

Case brief

AI extract

What is this about?

The Gauhati High Court interfered with an election Tribunal order directing a ballot recount. The Court held that a recount is a final relief requiring a prima-facie case based on evidence, which was absent. The order was set aside and the matter remanded for a speedy hearing.

What did the court decide?

The order dated 25.08.2022 directing recounting of votes is set aside. The matter is remanded to the Tribunal for hearing within two months.

Manju Begum Vs the State of Assam and 5 Ors. — Election Law | Gauhati HC (2022)

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GAHC010175222022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/5710/2022

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MANJU BEGUM

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W/O- MD. BAIDULLAH ALI, R/O- VILL- MUKALMUA, P.S. MUKALMUA, DIST.- NALBARI, ASSAM, PIN- 781126

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REP. BY CHIEF SECY., DISPUR, GHY, ASSAM, PIN- 781006 2:THE ASSAM STATE ELECTION COMMISSION HOUSEFED COMPLEX DISPUR GHY-06 3:THE RETURNING OFFICER CUM DY. COMMISSIONER NALBARI IN THE TOWN AND DIST.- NALBARI ASSAM PIN- 781335 4:THE DISTRICT ELECTION OFFICER NALBARI P.S. AND DIST.- NALBARI ASSAM PIN- 781335 5:THE ASSTT. RETURNING OFFICER PANCHAYAT ELECTION 2018 NALBARI CUM BLOCK DEVELOPMENT OFFICER BARKHETRI DEVELOPMENT BLOCK MUKALMUA P.O. MUKALMUA

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DIST.- NALBARI ASSAM PIN- 781126 6:NAJMIN BEGUM W/O- MD. REJEK ALI R/O- VILL- NARAYANPUR P.S. MUKALMUA DIST.- NALBARI ASSAM PIN- 78112

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Advocate for the Petitioner : MR. A C SARMA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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07.09.2022

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Heard Mr. A. C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj, learned counsel appearing for the writ petitioner. I have also heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. M. Ahmed, learned counsel appearing for the respondent No.6. Mr. N. Goswami, learned Govt. Advocate, Assam has appeared on behalf of respondent No.1 and Mr. N. K. Dev Nath, learned Standing Counsel, P & RD Department, Assam has appeared on behalf of respondent No.5. None has appeared for the remaining respondents.

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In this writ petition the order dated 25.08.2022 passed by the learned District Judge –cum- Election Tribunal, Nalbari in E.P. Case No.2/2019 directing recounting of the votes cast in respect of the elections held in connection with 59 No. Mukalmua Narayanpur Gaon Panchayat has been put under challenge.

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By an interlocutory order, the learned Tribunal has directed that the recounting of the votes will be held on 07.09.2022. The impugned order has been assailed primarily on the ground that before directing re-counting of the votes, which is in the nature of final relief in the election petition, the learned Tribunal has not recorded findings based on evidence on record to show that the election petitioner had succeeded in making out a strong prima-facie case for ordering recounting of the ballots.

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Mr. Sarma, learned senior counsel for the petitioner, submits that the relief of re-counting of ballots could have been considered by the learned Tribunal only after final hearing of the election petition but such relief has been erroneously granted in the form of an interim relief thereby causing serious prejudice to the interest of the writ petitioner, who is the returned candidate.

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Responding to the above, Mr. K. N. Choudhury, learned senior counsel appearing for the respondent No.6 has submitted in his usual fairness that an order for recount of ballots ought to be issued by the Tribunal if the election petitioner succeeds in making out a prima-facie case based on evidence adduced on record but the said exercise has evidently not been carried out in this case before issuing the impugned order. Mr. Choudhury, however, submits that even if the interim order dated 25.08.2022 is set aside, even then, the matter be remanded back with a direction upon the learned Tribunal to complete the hearing of the election petition expeditiously since recording of evidence has already been completed in this case.

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The aforesaid stand of the learned senior counsel for the respondent No.6 also finds support from the learned Government Advocate, Assam as well

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as Mr. Dev Nath, learned Standing Counsel, P & RD Department, Assam appearing for the official respondents.

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Law is firmly settled that in an election petition where the election of the returned candidate is put under challenge on the ground of improper reception and/or counting of ballots, the learned Election Tribunal is required to examine the evidence brought on record so as to consider as to whether a strong prima-facie case is made out by the election petitioner to order recount of ballots. Therefore, an order for recount of ballots is in the nature of final relief in the election petition although the outcome of the recounting process may in the ultimate analysis, determine the fate of the returned candidate.

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A perusal of the impugned order dated 25.08.2022 goes to show that the learned Tribunal has not arrived at a finding based on discussion of evidence available on record to conclude that the election petitioner has succeeded in making out a case to convince the court that the results of the election stood vitiated due to improper counting of ballots. Under the circumstances, this Court is left with no option but to interfere with the impugned order dated 25.08.2022.

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Ordered accordingly.

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Having set aside the order dated 25.08.2022 this matter is hereby remanded back to the learned Tribunal with a request to conduct the hearing of the election petition expeditiously and to make an attempt to conclude the same preferably within a period of two months from the date of receipt of a certified copy of this order.

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Since the next date fixed in the election petition is 12.09.2022, both the

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parties would appear before the learned Tribunal on that day so as to enable

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the learned court below to pass further order in the matter.

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Writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Manju Begum v. the State of Assam and 5 Ors.

Case brief

What is this about?

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Manju Begum v. the State of Assam and 5 Ors.

Case brief

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